(CRIMINAL SIDE) Information No. 179/8/2013 BETWEEN: REGINA -V

COMMONWEALTH OF THE BAHAMAS IN THE SUPREME COURT (CRIMINAL SIDE)

Information No. 179/8/2013

BETWEEN:

REGINA

-v-

(1) CRAIG JOHNSON a.k.a. “Monks” (2) ANTON BASTIAN a.k.a. “Lolly” (3) JAMAAL DORFEVIL a.k.a. “Rasta” (4) MARCELLUS WILLIAMS a.k.a. “Slowie”

Before: The Hon. Madam Justice Indra H. Charles

Appearances: Mr. Ambrose Armbrister for the Crown Mr. Nathan Smith for the Defendant, Craig Johnson Mr. Roberto Reckley for the Defendant, Anton Bastian Ms. Sonia Timothy for the Defendant, Jamaal Dorfevil Mr. Moses Reginald Bain for the Defendant, Marcellus Williams

Hearing Dates: 24 February, 8 March, 31 March 2016

JUDGMENT ON SENTENCING

[Criminal Law – Murder done in furtherance of robbery - Qualification for death penalty pursuant to Section 291(1) of Criminal Code (Amendment) - Death penalty or Life imprisonment – Sections 290 (2) and 291(1) of the Penal Code (Amendment) Act, 2011, No. 34 of 2011 –“the worst of the worst” category- prospects of reform]

Armed Robbery- Aggravating factors outweigh mitigating features- Cardinal principles in sentencing – Appropriateness of sentences]

Introduction: [1] HARIPRASHAD-CHARLES J: After a seven-week trial which ended on 3 November 2015, the defendants, Craig Johnson, Anton Bastian and Marcellus Williams were convicted by a unanimous jury of one count of murder and two

counts of armed robbery. The defendant, Jamaal Dorfevil was convicted of two counts of robbery. For convenience, I will, first of all, dispose of Mr. Dorfevil’s sentencing

JAMAL DORFEVIL [2] Mr. Dorfevil was convicted by a unanimous jury of two counts of robbery. The facts which the jury must have accepted are that he was the driver of the getaway vehicle and he did know of the presence of a firearm. The talk was about “cutting a scene” so he was aware that the other defendants were going to rob and he drove them around until they exited the vehicle.

The law [3] Section 339(1) of the Penal Code states that “whoever commits robbery shall be liable to imprisonment for 14 years.”

Sentencing guidelines [4] Most offenders convicted of robbery whether in the United Kingdom or in the Commonwealth Caribbean receive custodial sentences. The guideline cases in the UK are R. v. Turner (B.J.) 1, R. v. Daly 2, R. v. Gould 3 and R v Adams and Harding4. In Turner, a bank robbery case, Lawton LJ said that the normal starting-point for sentence for anyone taking part in a bank robbery or in a hold- up of a security should be 15 years, if firearms were carried and no serious injury done. The lack of a previous criminal record is not to be regarded as a powerful mitigating factor.

[5] Ms. Timothy helpfully provided a table of cases and sentences for armed robbery in this jurisdiction including the cases of SCCivApp No. 201 of 2012 Jeremy Kemp – sentence of 9 years for attempted armed robbery, No. 5 of

1 [1975] 61 Cr. App. R. 67, CA at p.91 2 [1981] 3 Cr. App. R (S). 340, CA. 3 [1983] 5 Cr. App. R. (S) 72, CA. 4 [2000] 2 Cr. App. R. 274. 2

2008 -Leon Romeo Rahming –armed robbery -10 years and No. SCCRApp& CAIS No. 68 of 2012 -Derek Stuart v Regina – armed robbery – 12 years.

Court’s considerations [6] The maximum sentence for robbery is 14 years. It is also widely recognized that the aims of sentencing are that of retribution, deterrence, prevention and rehabilitation. The decision to impose a custodial sentence and the length of such sentence, is heavily dependent on the aggravating and mitigating features and, usually to a lesser extent, the personal circumstances of the offender. The Courts also do take into consideration, the abhorrence with which the public regard those who rob.

[7] One of the aggravating factors is that two young women were robbed of their bags and subsequently, a young man lost his life.

[8] The mitigating factors are identified as:

. No previous conviction and he expressed remorse that a life was lost although he maintained his innocence. . In custody since May 2013. . Thirty two years. . Usefully used his time in prison to do a course –The Alpha Course. . Prospects of returning to his job seem great as we heard the evidence of his employer.

[9] There is no doubt that robbery is a serious crime that warrants custodial sentence. In the present case, I have given due consideration to all that was said by Counsel for the defendant in mitigation. I have considered what the learned Prosecutor Mr. Armbrister said on sentencing.

[10] Taking all factors into consideration, I am of the opinion that a sentence of six (6) years on each count meets the justice of the case. The sentences will run concurrently with each other from the date of conviction: 3 November 2015.

Three years will be deducted as time spent on remand so he is sentenced to 3 years imprisonment from 3 November 2015.

Defendants Craig Johnson, Anton Bastian and Marcellus Williams [11] At the time of conviction, the learned Prosecutor Mr. Armbrister gave notice of the intention of the Crown to seek the death penalty pursuant to section 290(2)(c)(i) of the Penal Code (Amendment) Act, 2011, No. 34 of 2011.

[12] The allocutus having been read to each defendant, the Court ordered the production of pre-sentence reports and psychiatric reports to assist in the sentencing process. These reports have been made available to the Court and to all Counsel.

The facts [13] The salient facts of the case are as follows. Kyle Bruner (“the deceased”) worked as the first mate on board the Liberty Clipper which was docked at Nassau Yacht Haven. On Sunday 12 May 2013, around midnight, the deceased and his co-worker, Sean Caniff left their boat to go out for a few drinks. They first went to Atlantis on Paradise Island. About 3.00 a.m. they walked down to Hammerheads Bar on Bay Street. Whilst there they met two females, Haley Sayer and Jane Robertson and also, Ben Myers. They were talking and drinking until the bar closed at 4.00 a.m. They then left the bar and headed to Double D’s to get some food. Except for Ben Myers who followed them in his car, they all rode in Jane’s car. They parked on Mackey Street not too far away from Double D’s. As they were walking towards Double D’s, Sean Caniff said that he heard someone shouting and as he turned around, he saw someone struggling with a black male and he saw another male struggling with the deceased. He noticed that that male had what appeared to be a gun in his right hand. Sean said that he believed the deceased pushed the male and he fell back and shortly after, the male fired a shot at the deceased who fell to the ground. Sean identified the male as Craig Johnson at an identification parade.

[14] The police investigated and the three defendants with others were taken into police custody. Each defendant was interviewed under caution. Each defendant confessed to being present. The defendant Anton Bastian was handed over to Superintendent Perry Clarke by his father. In the presence of his father, he said “I was at Double D’s when the vibe gone down but I ain’t shoot nobody. One dude name Craig Johnson who we does call Monks who live off St. James Road, had the gun and he shoot the white man.”

[15] Craig Johnson confessed also and so did Marcellus Williams who implicate himself as a bag snatcher.

[16] Each defendant was interviewed by a Probation Officer and respective reports were prepared.

[17] The consultant forensic psychiatrist Dr. Dillet also examined each defendant.

CRAIG JOHNSON [18] He was the shooter. He was born on 30 November 1992 so he is 23 years old now- was 20 years old at the date of the commission of the offence. He maintains his innocence. He is a first offender. Mrs. Sonia Saunders said that most people like the defendant are candidates for rehabilitation. A few infractions at Prison being found in possession of a cell phone.

Psychiatrist Report [19] Dr. John Dillet, the consultant psychiatrist at the Sandilands Rehabilitation Center, evaluated the defendant and prepared a report dated 1 February 2016. Dr. Dillet also testified at the sentencing hearing. In his opinion, the defendant does not meet the criteria for a formal mental health disorder. He has a lifetime prevalence of marijuana misuse disorder but has no current symptoms.

Plea in mitigation

[20] Learned defence Counsel, Mr. Smith urged the court not to impose the death penalty. As he says, there is a right to life. He further submitted that the death penalty is reserved for “the worse of the worse” cases and that this case does not fall in that category.

[21] He next submitted that even if the Court is to find that this case fell within that category, the further principle to be satisfied is that there must be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death. Learned Counsel submitted that the defendant has an unblemished record and he is not remorseful simply because he denied the allegations.

ANTON BASTIAN

[22] A Probation as well as a psychiatric Report was prepared for the defendant Anton Bastian. He is born on 28 July 1993 and so is 22 years of age and roughly 19 when the murder and armed robberies took place. He was a labourer. He expressed condolences to the deceased family for the loss of the deceased. He also reportedly stated that he is saddened by the “bad reflection” of these offences against visitors who come to the country to spend money and have fun especially when he is viewed as a culprit. At the Correctional Facility, the defendant has breached the rules on 2 occasions – 8 April 2014 – possession of a homemade shank, possession of a cellular phone and possession of 2 sim cards – he pleaded not guilty and he was cautioned. On 16 June 2015, he was found in possession of a make shift shank and fighting with inmate – punishment was impoundment of property for 30 days.

[23] The defendant denied ownership of the property found stating that he was not the sole occupant of the cell. He explained that in June 2015, he was attacked by an inmate with was armed with a “jooker”.

[24] He displays rehabilitative qualities according to the Probation Officer, Ms. Christina Swain.

[25] Dr. John Dillet examined the defendant Bastian. He reported that the prison records reflect that the defendant has two prior admissions to the Depatment of Corrections – stealing and possession with intent to supply occurring at ages 15 and 17. Mr. Bastian has a lifetime prevalence of marijuana usage (7-8 times total) but no recent usage. He has previously been disgnozed with asthma.

[26] A Criminal Records Antecedent Form from the RBPF shows that Mr. Bastian has two previous convictions on 27 July 2010 – causing damage and throwing missiles –fined $100 and on 11 August 2010 –shop breaking – placed on probation for 6 months and ordered to complete 250 hours of community service.

[27] Mr. Reckley also implores the court not to impose the death penalty – see written submissions.

MARCELLUS WILLIAMS

[28] Marcellus Williams – born 16 September 1991 – 24 years of age -21 at the time of the incident. Ms. Sagina Pratt interviewed him and reported that on 27 November 2014, whilst in Maximum Security he was found with a nokia cellphone and a make shift shank – sharpened purple tooth brush and charged for being a nuisance during the execution of an officer’s duty. He was found guilty and lost one month’s privileges. He maintained that the items did not belong to him.

[29] After being together for 6 years, his parents mutually agreed to end their relationship and this appeared to have negatively impacted the defendant as elaborated by Mr. Walton Bain during this plea in mitigation. He followed bad company which resulted in him being convicted of a previous offence of stealing in 2008 and sentenced to Her Majesty’s Prison. He is described as a quiet and

respectful individual. The defendant maintained his innocence for the offences for which he is convicted.

[30] Mr. Bain also implored the court not to impose the death penalty – which Mr. Armbrister calls for. Mr. Armbrister referred to the cases of Simeon Bain and Peter Meadows both of which are cases which the Court of Appeal stated qualify for the death penalty. I should add that both defendants were however sentenced to determinate sentences not even life.

The law [31] Section 290 (2) of the Penal Code (Amendment) Act, 2011, No. 34 of 2011 (“the Act”) states as follows:

“Every person who is convicted of murder committed in any of the following circumstances shall be sentenced in accordance with section 291(1), that is to say –

(a) the murder of –

(i) a member of a disciplined force acting in execution of his duties or of a person assisting a member so acting;

(ii) a judicial officer acting in the execution of his duties or of a person assisting a judicial officer so acting; or

(iii) any person acting pursuant to powers, authorities and privileges as are given to members of the Royal Bahamas Police Force under the provisions of any law in force for the time being;

(b) the murder of any person for any reason attributable to-

(i) the status of that person as a witness or party in a pending or concluded civil cause or matter or in any criminal proceedings; or

(ii) the service of past service of that person as a juror in any criminal trial;

(i) robbery

(iii) rape

(iv) kidnapping;

(v) terrorism;

and any other felony.

(d) the murder of more than one person;

(e) any murder committed by a person who before that murder had been previously convicted of another murder done on a different occasion anywhere within or outside of The Bahamas;

(f) any murder committed pursuant to an arrangement whereby money or anything of value –

(i) passes or is intended to pass from one person to another or to a third party at the request or direction of that other person; or

(ii) Is promised by one person to another or to a third person at the request or direction of that other person,

as consideration for that other person causing or assisting in causing the death of any person or counseling or procuring any person to do an act causing or assisting in causing that death.”

[32] Section 291 (1) provides as follows:

“Notwithstanding any other law to the contrary – (a) every person who is convicted of murder falling within section 290(2) (a) to (f) shall be sentenced to death or to imprisonment for life….”

[33] The present case falls under section 290(2)(c) of the Act. It is a murder committed in furtherance of a robbery. Pursuant to section 291(1) of the Act, the court has a discretion whether or not to sentence the defendant to death.

[34] In Simeon Bain v Regina, the Court of Appeal said that such an offence qualifies for the death penalty. However, in my opinion, the court will still have

to determine whether this murder falls in the category of cases which can best be described as “the worst of the worst” or “the rarest of the rare” and also, the possibility of reform for these three defendants.

[35] In Ernest Lockhart v The Queen [2011] UKPC 33 (a case emanating from this jurisdiction), the Privy Council, at paragraph 6 of the judgment, re-stated “the two basic principles” that applied to the question whether the death penalty should be imposed as were set out in Trimmingham v The Queen [2009] UKPC 25 in the following passages from paras 20 and 21:

"20. Judges in the Caribbean courts have in the past few years set out the approach which a sentencing judge should follow in a case where the imposition of the death sentence is discretionary. This approach received the approval of the Board in Pipersburgh v The Queen [2008] UKPC 11, and should be regarded as established law.

21. It can be expressed in two basic principles. The first has been expressed in several different formulations, but they all carry the same message, that the death penalty should be imposed only in cases which on the facts of the offence are the most extreme and exceptional, 'the worst of the worst' or 'the rarest of the rare'. In considering whether a particular case falls into that category, the judge should of course compare it with other murder cases and not with ordinary civilised behaviour. The second principle is that there must be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death. The character of the offender and any other relevant circumstances are to be taken into account in so far as they may operate in his favour by way of mitigation and are not to weigh in the scales against him. Before it imposes a sentence of death the court must be properly satisfied that these two criteria have been fulfilled."

[36] At para 9, the Privy Council continued:

“The second principle in Trimmingham, (that there must be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death) has, obviously, two aspects. These do not bear any clearly evident connection with each other. Indeed, the second aspect, that the ultimate sentence of death is required in order to satisfy the requirements of due punishment, might be thought to be rather more comfortably accommodated with the question whether the offence is one which can properly be regarded as the worst of the worst. Be that as it may, in the present appeal, the first aspect of what has been described as the second principle has been the one which has prompted most debate.”

[37] Encapsulating, two fundamental principles are applicable to the imposition of the death penalty. The first principle is that the death penalty should only be imposed in cases which on the facts of the offence are the most extreme and exceptional, “the worst of the worst” or “the rarest of the rare.” The second principle is that there must be no reasonable prospect of reform of the offender and that the object of punishment could not be achieved by any means other than the ultimate sentence of death: State v Nakwanyana (1990) 4 SA 735 at 743-745A.

[38] Before a court imposes the death penalty, it must be satisfied that both criteria have been fulfilled. The nature and gravity of the offence, the character and record of the convicted person, the factors that might have influenced the conduct that caused the murder, the design and execution of the offence and the possibility of reform and social re-adaptation of the convicted person are to be taken into account in so far as they operate in his favour by way of mitigation and are not to be weighed in the scales against him.

Submissions by the parties [39] Mr. Nathan Smith appearing for the defendant Craig Johnson stressed the right to life.and argued against the imposition of the death penalty on the ground that it does not fall within the category of “the worst of the worst” or “the rarest of the rare”. Learned Counsel next argued that there is a right to life. [40] First and foremost, the court is guided by the principle that there is a presumption in favour of the unqualified right to life. Before the court imposes the death penalty, it must be satisfied that the two cardinal principles explicated by the Privy Council in Trimmingham are fulfilled. I shall deal with them sequentially.

The worst of the worst [41] The first principle for me to consider is whether the present case falls in the category of “the worst of the worst” or “the rarest of the rare.” If it does, then the

second principle of whether there is any reasonable prospect of reform of the defendant comes into play.

[42] Deciding what types of murders may be regarded as most extreme and exceptional in The Bahamas are fraught with conceptual difficulties. The principles laid down by the Privy Council in Trimmingham require that the sentencing judge should make comparisons with other murders in order to determine whether the defendant’s murder falls within the category of “the worst of the worst” or “the rarest of the rare.”

[43] In Trimmingham, the facts are chilling and staggering. In the course of a robbery, Trimmingham struck the 68 year old deceased in his stomach causing him to fall on the bank of a rain water ditch. He then threw the deceased in the ditch, cut his throat and then cut off his head with the cutlass which he took from the deceased. He then removed the deceased’s trousers from the body and wrapped the head in them. He handled the penis of the deceased and made a lewd remark about it. He slit the deceased’s belly, explaining to his accomplice that he did so to stop the body from swelling. He covered up the body and stuffed the trousers containing the head into a hole under a plant in a nearby banana field. The sentencing judge held that it was an exceptional and extreme case of murder. The Privy Council held that the death penalty should not have been imposed as it fell short of being among “the worst of the worst.” [44] In Maxo Tido, the facts are just as chilling and revolting as Trimmingham. The deceased was only sixteen years old. On the night of 30 April 2002, she and other family members had attended a political rally. They returned home at about 12.15 a.m. The deceased’s mother went to bed, leaving the deceased sitting at the dining room table reading a political manifesto that had been gotten at the rally. The following morning, the mother found her daughter missing. Her body was found later that day in a quarry pit. She had severe head injuries which could have been caused by her being struck by a hard object such as a rock or that they could have been the result of a car being driven

over her head. Her body had been set on fire and when it was discovered it was found to have been partially burnt.

[45] The trial judge found that the case fell among “the worst of the worst.” She imposed the death penalty. The Privy Council opined that whatever “the worst of the worst” or “the rarest of the rare” may mean, it was satisfied that the case did not come within that wholly exceptional category.

[46] At para 36, the Privy Council stated:

“…This was a dreadful crime. A young life was extinguished in brutal circumstances but it is not a case that can be placed along side the most horrific of murders of which, sadly, human beings are capable. There is no warrant for believing that it was planned, nor is there unmistakable evidence that it was accompanied by unusual violence, beyond that required to effect Miss Conover’s killing. There certainly appears to have been sexual contact (spermatozoa having been found on a vaginal swab) but there is no clear indication that she was the victim of a rape. This was, in short, an appalling murder but not one which warrants the most condign punishment of death.”

[47] Undoubtedly, the Privy Council has set a very high threshold when a judge is determining whether a case falls within that wholly extreme and exceptional category.

[48] In Ernest Lockhart, the Privy Council was clear that, despite conceptual difficulties, only the most exceptional cases will qualify. At para 7, it stated:

“In Maxo Tido v The Queen [2011] UKPC 16, the Board acknowledged that difficulties can arise in deciding which cases warrant the soubriquet, “the worst of the worst” or “the rarest of the rare”. It is quite clear, however, that only the most exceptional will qualify. Attempting to define which will come within this egregious category is not easy and one must guard against the risks that attend over-prescription in a field that defies precise classification….”

[49] The Privy Council further opined that some analogical assistance might be derived from considering the provisions of the Criminal Justice Act 2003 which in England and Wales specify the types of murder which calls for the imposition of the whole life tariff. Schedule 21 to the 2003 Act provides in para 4:

"(1) If—

(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and

(b) the offender was aged 21 or over when he committed the offence,

the appropriate starting point is a whole life order.

(2) Cases that would normally fall within sub-paragraph (1) (a) include—

(a) the murder of two or more persons, where each murder involves any of the following—

(i) a substantial degree of premeditation or planning,

(ii) the abduction of the victim, or

(iii) sexual or sadistic conduct,

(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,

(d) a murder by an offender previously convicted of murder."

[50] It is quite conspicuous that for murders which fall in any of these categories, the appropriate starting point is a whole life order. To my mind, it still remains unexplained what cases, if any, will fall in the category of the most extreme and exceptional to attract the death penalty.

[51] In the present case, the defendant lured the deceased to his apartment under the facade that he shared similar sexual propensity to the deceased. He then kidnapped the deceased, kept him in the trunk of the car for a few hours and then took him to his place of employment in furtherance to his plan to rob Burger King. When the deceased was unsuccessful in opening the safe, he was physically upset. He wanted money. He then murdered the deceased in the most cold-blooded and brutal manner. The offence was as heinous as it was

callous and this defendant deserved a sentence proportionate with his heartless and uncaring behaviour for life. To take away a life and more so, a young one in such a gruesome manner is repugnant to human dignity.

[52] In addition, it appeared that this murder had the hallmark of a planned and premeditated killing. But, reviewing the authorities [supra], particularly Ernest Lockhart, where the deceased drug dealer was shot and killed by the appellant who was also a drug dealer in order to protect his “turf”, that factor, by itself, would not justify categorizing this murder as “the worst of the worst” or “the rarest of the rare”. Assessing the nature and all of the surrounding circumstances of this case, to my mind, this murder does not come within the wholly exceptional category of “the worst of the worst.”

[53] Having come to this conclusion, based on the authority of Ernest Lockhart, there is no need to consider the question of reasonable prospect of reform of the defendant. In any event, the Crown has not satisfied me beyond reasonable doubt that there is no prospect of reform and the object of punishment would not be achieved by other means. On the contrary, the Probation Report painted the defendant as a well-behaved inmate at Her Majesty’s Prison. In addition, he had an unblemished criminal record. [54] The object of sentencing is not to reflect the court’s subjective reaction to a crime but to impose a sentence that reflects society’s abhorrence. The sentencing process seeks to promote a respect for the law and an orderly society. I must consider the four cardinal principles of sentencing summed up as “retribution, deterrence, prevention and rehabilitation.” All of the principles have been looked at separately.

[55] Also, I have taken into consideration the aggravating and mitigating factors in this case. Section 291(1)(a) of the Act expressly provides that since this murder falls within section 290(2) (a) to (f), the sentence shall be death or imprisonment for life. So while this case qualifies for the death penalty it also qualifies for life

imprisonment – it is the death penalty or life imprisonment so a judge has a wide discretion.

The sentences

[56] The defendant, CRAIG JOHNSON is sentenced as follows:  First Count of Murder – forty five years less three years on remand = forty two (42) years from 3 November 2015;  Second Count of Armed Robbery – twelve years less three years on remand = Nine (9) years from 3 November 2015;  Third Count of Armed Robbery - twelve years less three years on remand – Nine (9) years from 3 November 2015.  All counts will run concurrently with each other.  The defendant will receive counseling in substance abuse during his incarceration on such terms and conditions as a clinical psychologist deems fit.

[57] The defendant, ANTON BASTIAN is sentenced as follows:  First Count of Murder – forty years less three years on remand = thirty-seven (37) years from 3 November 2015;  Second Count of Armed Robbery – twelve years less three years on remand = Nine (9) years from 3 November 2015;  Third Count of Armed Robbery - twelve years less three years on remand – Nine (9) years from 3 November 2015.  All counts will run concurrently with each other.  The defendant will receive counseling in substance abuse during his incarceration on such terms and conditions as a clinical psychologist deems fit.

[58] The defendant, MARCELLUS WILLIAMS is sentenced as follows:  First Count of Murder – forty years less three years on remand = thirty-seven (37) years from 3 November 2015;

 Second Count of Armed Robbery – twelve years less three years on remand = Nine (9) years from 3 November 2015;  Third Count of Armed Robbery - twelve years less three years on remand – Nine (9) years from 3 November 2015.  All counts will run concurrently with each other.  The defendant will receive counseling in substance abuse during his incarceration on such terms and conditions as a clinical psychologist deems fit.  The Commissioner of Corrections is to facilitate the defendant in continuing his trade in carpentry.

Dated this 31st day of May 2016.

Indra H. Charles Justice